Michael Trogdon, II v. Martin O'Malley

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 27, 2024
• Docket: 22-16461
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION AUG 27 2024 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL A. TROGDON, II, No. 22-16461

Plaintiff-Appellant, DC No. 1:21-cv-00387-SAB

v. MEMORANDUM* MARTIN J. O'MALLEY, Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Stanley Albert Boone, Magistrate Judge, Presiding**

Argued and Submitted August 16, 2024 San Francisco, California

Before: TASHIMA, CALLAHAN, and KOH, Circuit Judges.

Michael A. Trogdon, II, appeals from the district court’s judgment affirming

the Commissioner of Social Security’s decision denying Trogdon’s application for

disability benefits under Title II of the Social Security Act. We have jurisdiction

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The parties consented to proceed before a magistrate judge. See 28 U.S.C. § 636(c). under 28 U.S.C. § 1291. We review de novo the district court’s judgment and will

set aside the denial of benefits only if it is not supported by substantial evidence or

is based on legal error. Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022). We

affirm.

The Administrative Law Judge (“ALJ”) provided clear and convincing

reasons supported by substantial evidence for discounting Trogdon’s testimony

regarding the severity of his symptoms, including inconsistency with the medical

record and Trogdon’s daily activities, and evidence that his symptoms had

improved with treatment. See 20 C.F.R. § 404.1529(c)(3)(iv)-(v) (explaining that

the ALJ considers the effectiveness of medications and other treatment in

evaluating the reliability of symptom testimony); id. § 404.1529(c)(4) (explaining

that the ALJ considers the extent to which the claimant’s allegations are consistent

with the objective medical and other evidence); Smartt, 53 F.4th at 499 (explaining

that the ALJ may discredit a claimant’s symptoms testimony as inconsistent with

reported daily activities); see also id. at 497 (“When a claimant presents objective

medical evidence establishing an impairment ‘that could reasonably produce the

symptoms of which she complains, an adverse credibility finding must be based on

clear and convincing reasons.’” (citation omitted)).

The ALJ did not err in discounting the lay witness statement of Trogdon’s

wife without articulating germane reasons. First, under the revised regulations

2 applicable to this claim, the ALJ is “not required to articulate how [he] considered

evidence from nonmedical sources.” 20 C.F.R. § 404.1520c(d). Second, even if

the requirement that the ALJ provide germane reasons for discounting lay witness

testimony still applies, any error was harmless. See Molina v. Astrue, 674 F.3d

1104, 1114–15, 1122 (9th Cir. 2012) (explaining this requirement and holding that

the ALJ’s failure to provide germane reasons to discount lay witness testimony was

harmless where the evidence that the ALJ cited in discrediting the claimant’s

testimony also discredited the lay witness testimony), superseded on other grounds

by 20 C.F.R. § 404.1502(a).

The ALJ’s finding that the treating physicians’ opinions were unpersuasive

is supported by substantial evidence, including the treating physicians’ notes, the

medical record, and Trogdon’s daily activities. See 20 C.F.R. § 404.1520c(b)

(explaining that the agency must “articulate . . . how persuasive” it finds “all of the

medical opinions” from each source, and “explain how [it] considered the

supportability and consistency factors”); id. § 404.1520c(c)(1), (c)(2); Kitchen v.

Kijakazi, 82 F.4th 732, 740–41 (9th Cir. 2023) (upholding the ALJ’s finding that a

medical opinion was not persuasive where the assessment of severe limitations was

inconsistent with the doctor’s own treatment notes); see also Tommasetti v. Astrue,

533 F.3d 1035, 1041 (9th Cir. 2008) (explaining that an ALJ may reject a medical

opinion “if it is based ‘to a large extent’ on a claimant’s self-reports that have been

3 properly discounted” (citation omitted)).

The hypothetical posed by the ALJ to the vocational expert (“VE”)

incorporated Trogdon’s sit-stand limitation; therefore, the ALJ did not err in

relying on the VE’s testimony at step five. See SSR 83-12, 1983 WL 31253, at *4;

Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 1984) (explaining that under

SSR 83-12, for a claimant with sit-stand limitations, “[b]ecause the occupational

base is greatly reduced, the ALJ is directed to consult a vocational expert”); see

also Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006) (explaining that

at step five the Commissioner must show that there are significant jobs in the

national economy that the claimant can do, either by relying on the testimony of a

VE or by reference to the Medical-Vocational Guidelines).

We do not consider matters raised for the first time on appeal. See Smartt,

53 F.4th at 500–01.

AFFIRMED.